In Re: Medical Review Panel Claim Of: Ashley Babin ( 2021 )


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  • IN RE: MEDICAL REVIEW PANEL CLAIM OF:               NO. 21-CA-198
    ASHLEY BABIN
    FIFTH CIRCUIT
    COURT OF APPEAL
    STATE OF LOUISIANA
    ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
    PARISH OF JEFFERSON, STATE OF LOUISIANA
    NO. 806-264, DIVISION "F"
    HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING
    December 15, 2021
    JUDE G. GRAVOIS
    JUDGE
    Panel composed of Judges Susan M. Chehardy,
    Jude G. Gravois, and Hans J. Liljeberg
    AFFIRMED
    JGG
    SMC
    HJL
    COUNSEL FOR PLAINTIFF/APPELLANT,
    DWAYNE DELAUNE, LOGAN BABIN AND DWAYNE BABIN
    Ravi Sangisetty
    William D. Boyles
    COUNSEL FOR DEFENDANT/APPELLEE,
    OCHSNER MEDICAL CENTER - WESTBANK
    Carl E. Hellmers, III
    Stephanie D. O'Brien
    COUNSEL FOR DEFENDANT/APPELLEE,
    DR. JAMES CALLAGHAN
    Peter J. Butler, Jr.
    Richard G. Passler, Jr.
    Michael C. Luquet
    COUNSEL FOR DEFENDANT/APPELLEE,
    JOHN TRUITT BALART, M.D.
    C. William Bradley, Jr.
    Richard S. Crisler
    L. David Adams
    GRAVOIS, J.
    In this medical malpractice suit, plaintiffs/appellants, Dwayne Delaune,
    Login Babin, and Dwayne Babin, appeal a final judgment which sustained
    peremptory exceptions of prescription filed by defendants/appellees, Dr. James W.
    Callaghan, Dr. John Truitt Balart, and Ochsner Baptist Medical Center –
    Westbank, and dismissed their medical malpractice claims against defendants. For
    the reasons that follow, we affirm.
    FACTS AND PROCEDURAL HISTORY
    On August 21, 2019, Ashley Babin presented to the emergency room at
    West Jefferson Medical Center with complaints of severe abdominal pain. While
    there, she was treated by an emergency room physician, Dr. James W. Callaghan,
    and a radiologist, Dr. John Truitt Balart. She was discharged, but later that same
    day presented at Ochsner Baptist Medical Center – Westbank, where she was
    diagnosed with a bowel perforation. She was subsequently taken into surgery.
    Mrs. Babin died on August 23, 2019.
    On February 24, 2020, a request for a medical review panel was filed with
    the Division of Administration (“DOA”) regarding Mrs. Babin and alleging
    malpractice by Dr. Callaghan, Dr. Balart, and Ochsner Medical Center –
    Westbank. Mrs. Babin was the only individual referenced in this complaint other
    than the defendants. On February 28, 2020, the Patient’s Compensation Fund
    (“PCF”) sent a certified letter to plaintiffs’ counsel acknowledging receipt of the
    request for a medical review panel.
    By letter dated October 13, 2020 to the PCF, Dr. Callaghan requested that
    the medical review panel request be dismissed since it did not meet the
    requirements of La. R.S. 40:1231.8(A)(1)(b) in that it did not name a claimant. Dr.
    Callaghan asserted that the complaint only identified Mrs. Babin, but because she
    had died prior to the filing of the complaint, she could not be considered the
    21-CA-198                                 1
    claimant. On October 14, 2020, the following day, plaintiffs filed a supplemental
    request for a medical review panel with the DOA, in which Dwayne Delaune, Mrs.
    Babin’s surviving husband, and Login Babin and Dwayne Babin, Mrs. Babin’s
    surviving children, were named as claimants.
    Thereafter, each defendant filed a peremptory exception of prescription,
    alleging that the October 14, 2020 medical review panel request was prescribed on
    its face and could not relate back to the February 24, 2020 filing since that request
    was legally invalid as it did not name a proper party claimant.
    Following a hearing on the exceptions, the trial court signed a judgment on
    January 11, 2021 sustaining defendants’ peremptory exceptions of prescription,
    dismissing the medical malpractice claims against defendants, and dismissing the
    pending medical review panel proceeding in this case.
    This appeal followed. On appeal, plaintiffs argue that the trial court erred in
    granting the exceptions of prescription and dismissing their medical malpractice
    claims. Specifically, they assert:
    1. The Louisiana Medical Malpractice Act’s provisions regarding
    prescription should be strictly construed against a finding of prescription.
    2. The Louisiana Medical Malpractice Act and its relevant regulations
    provide for an opportunity for corrective action to be taken on
    deficiencies and prescription remains suspended during same.
    3. Prescription remained suspended from the filing of the initial malpractice
    complaint, making the corrected complaint subsequently timely filed.
    4. The Louisiana Supreme Court’s decision in Guffey allows for plaintiffs’
    attorney to be considered a claimant such that the initial complaint was
    proper and timely.
    5. The jurisprudence cited by defendants is clearly distinguishable as the
    incorrect parties initiated the medical review panel proceeding in those
    cases, whereas in the present case the appropriate parties instituted the
    proceedings.
    6. Alternatively, the submission of evidence to the attorney-chair should
    operate to constitute a timely-filed and valid medical review panel
    request.
    21-CA-198                                 2
    LAW AND ANALYSIS
    “On the trial of the peremptory exception pleaded at or prior to the trial of
    the case, evidence may be introduced to support or controvert any of the objections
    pleaded, when the grounds thereof do not appear from the petition.” La. C.C.P. art.
    931. The standard of review of a trial court’s ruling on a peremptory exception of
    prescription turns on whether evidence is introduced. Wells Fargo Financial
    Louisiana, Inc. v. Galloway, 17-413 (La. App. 4 Cir. 11/15/17), 
    231 So.3d 793
    ,
    800. When no evidence is introduced, appellate courts review judgments
    sustaining an exception of prescription de novo, accepting the facts alleged in the
    petition as true. DeFelice v. Federated Nat’l Ins. Co., 18-374 (La. App. 5 Cir.
    7/9/19), 
    279 So.3d 422
    , 426. However, when evidence is introduced at a trial on
    an exception of prescription, the trial court’s findings of fact are reviewed under
    the manifest error standard. 
    Id.
     “The standard of review of a trial court’s finding
    of facts supporting prescription is that the appellate court should not disturb the
    finding of the trial court unless it is clearly wrong.” Felix v. Safeway Ins. Co., 15-
    701 (La. App. 4 Cir. 12/16/15), 
    183 So.3d 627
    , 631 (citations omitted).
    Ordinarily, the party urging prescription bears the burden of proving that the
    cause of action has prescribed. Vicari v. Window World, Inc., 14-870 (La. App. 5
    Cir. 5/28/15), 
    171 So.3d 425
    , 435, writ denied, 15-1269 (La. 9/25/15), 
    178 So.3d 570
    . However, when prescription is evident on the face of the pleadings, the
    burden shifts to the plaintiff to show the action has not prescribed. 
    Id.
     When a
    cause of action is prescribed on its face, the burden is upon the plaintiff to show
    that the running of prescription was suspended or interrupted in some manner.
    Woods v. Cousins, 12-100 (La. App. 5 Cir. 10/16/12), 
    102 So.3d 977
    , 979, writ
    denied, 12-2452 (La. 1/11/13), 
    107 So.3d 617
     (internal citations omitted).
    Prescriptive statutes are strictly construed against prescription and in favor of the
    obligation sought to be enforced. DeFelice, supra, at 426.
    21-CA-198                                  3
    The prescriptive period for medical malpractice actions is set forth in La.
    R.S. 9:5628, which states in pertinent part:
    A. No action for damages for injury or death against any physician,
    chiropractor, nurse, licensed midwife practitioner, dentist,
    psychologist, optometrist, hospital or nursing home duly licensed
    under the laws of this state, or community blood center or tissue
    bank as defined in La. R.S. 40:1231.1(A), whether based upon tort,
    or breach of contract, or otherwise, arising out of patient care shall
    be brought unless filed within one year from the date of the alleged
    act, omission, or neglect, or within one year from the date of
    discovery of the alleged act, omission, or neglect; however, even
    as to claims filed within one year from the date of such discovery,
    in all events such claims shall be filed at the latest within a period
    of three years from the date of the alleged act, omission, or neglect.
    Pursuant to the Louisiana Medical Malpractice Act, a party must first
    present a proposed complaint to a medical review panel for review prior to filing
    suit in the trial court. La. R.S. 40:1231.8(A)(1)(a).1 Warren v. Louisiana Medical
    Mutual Insurance Company, 07-0492 (La. 6/26/09), 
    21 So.3d 186
    , 204 (on
    rehearing). The prescriptive period for filing a lawsuit set forth in La. R.S.
    9:5628(A) is suspended during the full time that a claim is pending before a
    medical review panel and for ninety days following notification to the claimant (or
    his/her attorney) of the panel’s opinion. La. R.S. 40:1231.8(A)(2)(a).2
    1
    La. R.S. 40:1231.8(A)(1)(a) provides:
    All malpractice claims against health care providers covered by this Part, other
    than claims validly agreed for submission to a lawfully binding arbitration
    procedure, shall be reviewed by a medical review panel established as hereinafter
    provided for in this Section. The filing of a request for review by a medical
    review panel as provided for in this Section shall not be reportable by any health
    care provider, the Louisiana Patient’s Compensation Fund, or any other entity to
    the Louisiana State Board of Medical Examiners, to any licensing authority,
    committee, or board of any other state, or to any credentialing or similar agency,
    committee, or board of any clinic, hospital, health insurer, or managed care
    company.
    2
    La. R.S. 40:1231.8(A)(2)(a) provides:
    The filing of the request for a review of a claim shall suspend the time within
    which suit must be instituted, in accordance with this Part, until ninety days
    following notification, by certified mail, as provided in Subsection J of this
    Section, to the claimant or his attorney of the issuance of the opinion by the
    medical review panel, in the case of those health care providers covered by this
    Part, or in the case of a health care provider against whom a claim has been filed
    under the provisions of this Part, but who has not qualified under this Part, until
    ninety days following notification by certified mail to the claimant or his attorney
    by the board that the health care provider is not covered by this Part. The filing of
    a request for review of a claim shall suspend the running of prescription against
    21-CA-198                                         4
    Louisiana Revised Statute 40:1231.8(A)(1)(b) provides that the required
    contents for a medical review panel request are as follows:
    (b) A request for review of a malpractice claim or a malpractice
    complaint shall contain, at a minimum, all of the following:
    (i) A request for the formation of a medical review panel.
    (ii) The name of only one patient for whom, or on whose behalf,
    the request for review is being filed; however, if the claim
    involves the care of a pregnant mother and her unborn child,
    then naming the mother as the patient shall be sufficient.
    (iii) The names of the claimants.
    (iv) The names of the defendant health care providers.
    (v) The dates of the alleged malpractice.
    (vi) A brief description of the alleged malpractice as to each
    named defendant health care provider.
    (vii) A brief description of the alleged injuries.
    (Emphasis added.)
    On appeal, plaintiffs contend that the trial court erred in granting the
    exceptions of prescription because the original request for review filed on February
    24, 2020 was timely filed and suspended prescription, and thus the supplemental
    request for review filed on October 14, 2020 was also timely. Plaintiffs argue that
    the jurisprudence cited by defendants, including Guffey v. Lexington House, LLC,
    18-1568 (La. 5/8/19), 
    283 So.3d 1001
    , reh’g denied, 18-1568 (La. 6/26/19), 
    319 So.3d 820
    , is distinguishable because in the present case, the medical review panel
    request was not filed by an improper party, but rather did not list any claimant, or
    was valid since counsel for the appropriate claimants initiated the proceeding.
    Also, plaintiffs argue that their identity was disclosed to defendants when they
    all joint and solidary obligors, and all joint tortfeasors, including but not limited to
    health care providers, both qualified and not qualified, to the same extent that
    prescription is suspended against the party or parties that are the subject of the
    request for review. Filing a request for review of a malpractice claim as required
    by this Section with any agency or entity other than the division of administration
    shall not suspend or interrupt the running of prescription. All requests for review
    of a malpractice claim identifying additional health care providers shall also be
    filed with the division of administration.
    21-CA-198                                        5
    responded to discovery less than two months after the request for a medical review
    panel was filed.
    In Guffey, Deana Frederick timely filed a request for a medical review panel
    seeking review of the care given to her grandmother, Geneva Guffey, that resulted
    in her grandmother’s death. In the request for review, Ms. Frederick identified
    herself as “CLAIMANT: Deana Frederick, on Behalf of her Deceased
    Grandmother.” More than a year after Mrs. Guffey’s death, Ms. Frederick sent a
    “supplement” to her request for review seeking to add two claimants, James
    Guffey, one of Mrs. Guffey’s sons, and Ms. Frederick, as the representative of
    Mrs. Guffey and her estate. In response, the defendant filed an exception of no
    right of action, alleging that Ms. Frederick was not a proper party claimant because
    as Mrs. Guffey’s granddaughter, she is not included in the class of persons who
    can file a survival action or a wrongful death action. Id. at 1003. The trial court
    denied the exception. Thereafter, the medical review panel issued its opinion, and
    within 90 days, plaintiffs, James Guffey and George Guffey, another of Mrs.
    Guffey’s sons, filed suit individually and on behalf of their mother. The defendant
    filed an exception of prescription in response. Id. at 1004. The trial court denied
    the exception of prescription, and the Third Circuit denied the writ taken. Id. at
    1005. Before the Supreme Court, the defendant argued 1) that Ms. Frederick was
    not a proper claimant under the Medical Malpractice Act because she did not meet
    the definition of a “claimant” under La. R.S. 40:1231.1(A)(4) and (A)(18), and
    because she was not entitled to seek damages as a result of Mrs. Guffey’s death;
    and 2) a timely-filed request for a medical review panel only suspends prescription
    as to those claimants named in the original request for review and since Mrs.
    21-CA-198                                 6
    Guffey’s sons were not named in the original request for review and did not submit
    timely malpractice claims, their claims are prescribed.3 Id. at 1006.
    The issue presented before the Supreme Court was “the scope of the term
    ‘claimant’ under the medical malpractice act” and whether Ms. Frederick was a
    proper party to file a claim and initiate a medical review panel thus tolling
    prescription. Id. at 1007. The court considered the language of the statute,
    specifically “claimant” as defined in La. R.S. 40:1231.1(A)(4) and “representative”
    as defined in La. R.S. 40:1231.1(A)(18), and found that reading La. R.S.
    40:1231.1(A)(4) in light of the Civil Code, presumes that only those persons with a
    right of action to seek damages or the representative specified in La.
    R.S.40:1231.1(A)(18) may qualify to be a “claimant” within the meaning of the
    Medical Malpractice Act.4 Id. at 1010. Further, the Supreme Court found that
    when the legislature enacted La. R.S. 40:1231.8(B)(2),5 it was made clear that a
    “claimant” must possess a right of action to seek damages to make a valid request
    for a medical review panel. Id.
    3
    Because the Supreme Court found merit to the first argument that Ms. Frederick was not
    a proper “claimant” within the meaning of the Louisiana Medical Malpractice Act, the court did
    not reach the second issue. Id. at 1006.
    4
    La. R.S. 40:1231.1(A)(4) defines claimant as:
    “Claimant” means a patient or representative or any person, including a
    decedent’s estate, seeking or who has sought recovery of damages or future
    medical care and related benefits under this Part. All persons claiming to have
    sustained damages as a result of injuries to or death of any one patient are
    considered a single claimant.
    La. R.S. 40:1231.1(A)(18) defines representative as:
    “Representative” means the spouse, parent, guardian, trustee, attorney or other
    legal agent of the patient.
    5
    La. R.S. 40:1231.8(B)(2)(a) provides:
    A health care provider, against whom a claim has been filed under the provisions
    of this Part, may raise peremptory exceptions of no right of action pursuant to
    Code of Civil Procedure Article 927(6) or any exception or defenses available
    pursuant to R.S. 9:5628 in a court of competent jurisdiction and proper venue at
    any time without need for completion of the review process by the medical review
    panel.
    21-CA-198                                          7
    The Supreme Court determined that Ms. Frederick was not a
    “representative” of Mrs. Guffey pursuant to La. R.S. 40:1231.1(A)(18) when she
    filed the initial request for the medical review panel because Mrs. Guffey was
    deceased at that time. Ms. Frederick could not then be a representative of the
    patient “because the patient was deceased and was not then seeking nor had she
    ever sought, damages or benefits under the Act.” Id. at 1011. Alternatively, the
    Supreme Court found that the “supplement” in which Ms. Frederick added herself
    as a claimant in her capacity as representative of Mrs. Guffey’s estate was filed
    more than a year after the date of the alleged malpractice and from the date of Mrs.
    Guffey’s death and would not relate back to the original request for review. Id. at
    1011. Furthermore, the Supreme Court found that Ms. Frederick as the succession
    representative of the estate also could not qualify as a “claimant” because Ms.
    Frederick as the succession representative did not have a right of action under the
    facts of the case to seek recovery of damages pursuant to La. C.C. arts. 2315.1 or
    2315.2. Id. Therefore, the Supreme Court found that Ms. Frederick’s original
    request for a medical review panel did not toll prescription pursuant to La. R.S.
    40:1231.8(A)(2)(a). Id. at 1012.
    Based on our review of Guffey, we find that the February 24, 2020 request
    for review did not suspend prescription because it failed to name a proper claimant.
    In the present case, Mrs. Babin was the only party named in the original request for
    review. We find that Mrs. Babin does not qualify as a “claimant” under the
    Medical Malpractice Act, since she was deceased at the time the original complaint
    was filed and had no cause of action.6 Because she is not a proper claimant, the
    original request for review filed on February 24, 2020 did not toll prescription.
    Therefore, because prescription was not suspended, the request for review naming
    6
    A natural person is a human being. La. C.C. art. 24. “Natural personality commences
    from the moment of live birth and terminates at death.” La. C.C. art. 25.
    21-CA-198                                     8
    plaintiffs filed on October 14, 2020 which was more than a year after Mrs. Babin’s
    death was untimely.
    In brief, plaintiffs argue that Guffey supports a finding that an attorney can
    be considered a claimant for purposes of the Medical Malpractice Act. Plaintiffs
    submit that in Guffey, the Supreme Court found that a “representative” as defined
    in La. R.S. 40:1231.1(A)(18) may qualify as a “claimant.” Representative is
    defined in La. R.S. 40:1231.1(A)(18) as “the spouse, parent, guardian, trustee,
    attorney or other legal agent of the patient.” Plaintiffs acknowledge that their
    counsel did not represent Mrs. Babin in her individual capacity since she died
    shortly after the alleged malpractice. They contend, however, that there is no
    doubt that the claim was brought on behalf of Mrs. Babin’s surviving spouse and
    children, and though they were not initially listed, the statute allows for their
    representative to be considered a claimant.
    As previously noted, “representative” is defined as “the spouse, parent,
    guardian, trustee, attorney or other legal agent of the patient.” La. R.S.
    40:1231.1(A)(18).7 (Emphasis added.) Plaintiffs admit that their counsel was not
    the attorney of the patient, Mrs. Babin, because she was deceased at the time the
    original request for review was filed. The request for medical review panel does
    not indicate in any way that plaintiffs’ counsel was filing the complaint as a
    representative and also does not indicate who he was representing. We find no
    merit to this argument.
    On appeal, plaintiffs look to Gibson v. Jefferson Par. Hosp. Serv. Dist. No 2,
    19-283 (La. App. 5 Cir. 6/27/19), 
    275 So.3d 482
    , for support. In Gibson, Mrs.
    7
    La. R.S. 40:1231.1(A)(15) defines “patient” as:
    “Patient” means a natural person, including a donor of human blood, a donor or
    prospective donor of an organ or tissue, or blood components and a nursing home
    resident who receives or should have received health care from a licensed health
    care provider, under contract, expressed or implied.
    21-CA-198                                       9
    Gibson timely filed a request for a medical review panel with the DOA
    individually and on behalf of her deceased husband. Id. at 484-85. While the
    complaint was still pending before the medical review panel, Mrs. Gibson died.
    No one formally substituted themselves as a claimant before the DOA. Id. at 485.
    The matter proceeded, and after the medical review panel issued its opinion, a
    petition for damages was filed by the children of Mr. and Mrs. Gibson. Id. at 485-
    86. The defendant filed an exception of prescription which the trial court denied.
    Id. at 486. This Court determined that the timely filing of a request for review by a
    tort victim, or by any statutorily designated survivor for a survival claim should he
    be deceased, suspends the running of prescription not only as to the named
    claimant, but also as to all potential plaintiffs designated by La. C.C. art. 2315.1
    for a survival claim. Further, the filing of a timely request for review of a claim of
    medical malpractice resulting in wrongful death, by any statutorily designated
    survivor for a wrongful death claim, suspends the running of prescription not only
    as to the named claimant, but also as to potential plaintiffs designated by La. C.C.
    art. 2315.2 for wrongful death claims. Id. at 492.
    Gibson is distinguishable from the present case, however, because in
    Gibson, a timely request for a medical review panel was filed wherein a proper
    party claimant was named. As previously determined, a proper claimant was not
    named in the original request for review in the present case.
    Plaintiffs also argue that the Medical Malpractice Act and its regulations,
    specifically Louisiana Administrative Code, Title 37, Part III, §1403, provide for
    an opportunity for corrective action on deficiencies in a medical review panel
    request, and prescription remains suspended during that time. Louisiana
    Administrative Code, Title 37, Part III, §1403 provides:
    A. A “request for review of a malpractice claim” or “malpractice
    complaint” shall contain, at a minimum:
    21-CA-198                                 10
    1. a request for the formation of a medical review panel;
    2. full name of only one patient for whom, or on whose behalf, the
    request for review is being filed; however, if the claim involves the
    care of a pregnant mother and her unborn child, then naming only the
    mother as the patient shall be sufficient;
    3. full name(s) of the claimant(s);
    4. full name(s) of defendant health care providers;
    5. date(s) of alleged malpractice;
    6. brief description of alleged malpractice as to each named defendant;
    and
    7. brief description of alleged injuries.
    B. The request for review of a malpractice claim shall be deemed
    filed on the date of receipt of the complaint stamped and certified
    by the board or on the date of mailing of the complaint if mailed to
    the board by certified or registered mail.
    C. Within 15 days of receiving a malpractice complaint, the board
    shall:
    1. confirm to the claimant that the malpractice complaint has been
    officially received and whether or not the named defendant(s)
    are qualified for the malpractice claim;
    2. notify all named defendant(s) that a malpractice complaint
    requesting the formation of a medical review panel has been
    filed against them and forward a copy of the malpractice
    complaint to each named defendant at his last and usual place
    of residence or his office;
    3. if the malpractice complaint does not contain all of the required
    information set forth in paragraph (A) of this section, notify the
    claimant(s) that the malpractice complaint has been received
    but does not comply with this section and indicate what
    additional information is required and a reasonable time limit
    for submitting such additional information; and
    4. notify the claimant(s) if verification of employment or renewal
    of fund coverage must be obtained for a named defendant
    health care provider for fund qualification to be determined.
    Plaintiffs argue that the Second Circuit found in Ward v. Vivian Healthcare
    & Rehab. Ctr., 47,649 (La. App. 2 Cir. 5/15/13), 
    116 So.3d 870
    , that a medical
    review panel request supplemented per the PCF’s directive was not prescribed
    even though the supplement occurred more than a year after the patient’s death.
    21-CA-198                                   11
    In Ward, on July 7, 2010, the plaintiff filed a request for a medical review
    panel with the DOA. In response, the PCF notified the plaintiff by letter dated July
    19, 2010 that the request for review failed to provide the date of death and a brief
    description of the alleged malpractice. The letter stated that in order to maintain
    the original filing date, the plaintiff needed to return a corrected request for review
    within 30 days of the date of the letter. On August 20, 2010, the DOA received a
    letter from the plaintiff which stated that the date of death was July 8, 2009 and
    included a brief description of the alleged malpractice. 
    Id. at 872
    . Subsequently,
    the defendant filed an exception of prescription. 
    Id. at 872-73
    . The trial court
    denied the exception of prescription. At issue on appeal, as presented by the
    defendant, was 1) whether the filing that did not comply with the requirements of
    La. R.S. 40:1231.8(A)(1)(b)8 suspended prescription; 2) if prescription was not
    suspended, was the PCF authorized to extend the prescriptive period by allowing
    the claimant to file a corrected request for review; and 3) if the PCF could grant an
    extension, was the claim prescribed if the claimant failed to file a correction
    request for review within the extended period. 
    Id. at 873
    . Upon review, the
    Second Circuit found that the original timely filed complaint complied with the
    requirements of La. R.S. 40:1231.8(A)(1)(b). 
    Id. at 877
    . The court found that the
    original complaint included “the date of the alleged malpractice” as required in La.
    R.S. 40:1231.8(A)(1)(b)(v). 
    Id. at 876
    . Further, strictly construing the statute, the
    court found that the brief description of the alleged malpractice in the original
    request for review was sufficient, as the statute does not require the type of fact
    pleading required in a court petition. 
    Id. at 877
    . The court also noted that even if it
    hadn’t found that the initial complaint met the statutory requirements, the statute
    8
    Ward references La. R.S. 40:1299.47. La. R.S. 40:1299.47 was redesignated as La. R.S.
    40:1231.8 by H.C.R. No. 84 of the 2015 Regular Session. For ease of reference, we reference
    the current statutory designation.
    21-CA-198                                    12
    does not contain a penalty that would render the request for review invalid and
    without effect so that it does not suspend prescription. 
    Id. at 877-78
    . Based on its
    finding, the court pretermitted discussion regarding the authority the PCF has to
    grant additional time to file a corrected request for review and the timeliness of the
    corrected request for review. 
    Id. at 878
    .
    First, plaintiffs acknowledge that the PCF did not comply with the
    provisions of Louisiana Administrative Code, Title 37, Part III, §1403 in this case.
    Thus, we do not find it necessary to consider if such a provision if complied with
    suspends prescription and/or to what extent. See Franks v. Louisiana Patient’s
    Comp. Fund Oversight Bd., 16-0765 (La. App. 1 Cir. 5/3/17), 
    220 So.3d 862
    , 869,
    n.5, writs denied, 17-0868, 17-0877 (La. 9/29/17), 
    227 So.3d 294
    .9
    Additionally, we find Ward distinguishable from the present case. In Ward,
    the trial court found that the original request for review met the statutory
    requirements since the complaint contained both the date of the alleged malpractice
    and the brief description of the alleged malpractice. Nonetheless, plaintiffs argue
    that Ward is still supportive because the court found that even if the request for
    review failed to comply with the minimum statutory requirements, the statute
    contains no penalty provision that would render the request for review invalid and
    without effect so that it would not suspend prescription. Plaintiffs highlight that in
    Ward, the court noted that the Legislature provided a penalty for the failure to pay
    the mandated fee, but failed to provide such guidance as to any penalty or effect of
    failing to comply with the requirements of La. R.S. 40:1231.8(A)(1)(b).
    While we recognize that the statute does not specifically provide for a
    penalty or the effect of failing to comply with La. R.S. 40:1231.8(A)(1)(b) like it
    9
    In Franks, the court noted that since the record did not indicate that the PCF complied
    with or relied upon this regulatory provision in the processing of the plaintiff’s request for a
    medical review panel, the court did not further address it in the context of the case.
    21-CA-198                                       13
    does when the filing fee is not paid, we find, as previously discussed, that the
    Supreme Court’s opinion in Guffey, supra, rendered subsequent to Ward, is
    instructive and applicable to the present case.
    Finally, in the alternative, plaintiffs argue that their submission of evidence
    to the attorney-chair should operate to constitute a timely filed and valid medical
    review panel request. They assert that on April 1, 2020, they answered discovery
    propounded by Dr. Balart wherein they were named as the claimants. Further, they
    assert that a submission of evidence was submitted in July 2020 to the attorney-
    chair in which they were also named as claimants. They argue that to the extent a
    medical review panel is akin to a trial, the court should consider that the filing of
    the submission of evidence is in and of itself a filing which suspends prescription
    or amends the initial request for a medical review panel.
    Louisiana Revised Statute 40:1231.8(A)(2)(a) states that it is the “filing of
    the request for a review of a claim” that suspends prescription and that a request
    for review must be filed with the DOA. We find that the submission of evidence
    submitted to the attorney-chair is not a request for review filed with the DOA.
    Thus, we find no merit to this argument.
    In conclusion, we find that the trial court did not err in sustaining the
    exceptions of prescription and dismissing plaintiffs’ claims. The initial request for
    review filed on February 24, 2020 did not name a proper claimant and therefore
    did not suspend prescription. When plaintiffs filed the request for review on
    October 14, 2020, in which they were properly named as claimants, their claims
    were prescribed because more than a year had passed since Mrs. Babin’s death.
    DECREE
    For the foregoing reasons, the trial court’s judgment that sustained
    defendants’ exceptions of prescription and dismissed plaintiffs’ claims is affirmed.
    AFFIRMED
    21-CA-198                                  14
    SUSAN M. CHEHARDY                                                             CURTIS B. PURSELL
    CHIEF JUDGE                                                                   CLERK OF COURT
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    FREDERICKA H. WICKER
    CHIEF DEPUTY CLERK
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    ROBERT A. CHAISSON                                                            SUSAN S. BUCHHOLZ
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    FIRST DEPUTY CLERK
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    DECEMBER 15, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
    NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
    21-CA-198
    E-NOTIFIED
    24TH JUDICIAL DISTRICT COURT (CLERK)
    HONORABLE MICHAEL P. MENTZ (DISTRICT JUDGE)
    STEPHANIE D. O'BRIEN (APPELLEE)        MICHAEL C. LUQUET (APPELLEE)    C. WILLIAM BRADLEY, JR. (APPELLEE)
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Document Info

Docket Number: 21-CA-198

Judges: Michael P. Mentz

Filed Date: 12/15/2021

Precedential Status: Precedential

Modified Date: 10/21/2024